On November 21, after the Beastie Boys’ threatened suit, toy company GoldieBlox filed for declaratory judgment that its use of the Beastie Boys’ song, “Girls,” in one of its ads was fair use. The ad, for girls’ engineering toys, had previously gone viral. In their response, the Beastie Boys emphasized their consistent refusal to allow use of their songs in advertising. GoldieBlox removed the ad and promised to drop the suit if the Beastie Boys’ backed down.

The Ninth Circuit affirmed a district court’s denial of Fox Broadcasting Company’s (“Fox”) request for a preliminary injunction against a Dish Network (“Dish”) product associated with Dish’s “Hopper.” The Hopper allows subscribers to automatically record Fox’s primetime television shows, then view them with the commercials fast-forwarded.

The Court of Appeals for the Second Circuit vacated and remanded the lower court’s certification of the plaintiff class. The Second Circuit held that class certification should not precede a determination of Google’s fair use defense. The determination of the defense will “necessarily inform and perhaps moot” the Second Circuit’s analysis of class certification issues. Author’s Guild, Inc. v. Google Inc., No. 12-3200-cv, slip op. at 4 (2d Cir. July 1, 2013).

The U.S. Court of Appeals for the Second Circuit vacated the District Court for the Southern District of New York’s (S.D.N.Y.) dismissal of trademark infringement claims against Oprah Winfrey, rejecting her fair use defense. Kelly-Brown alleged that Winfrey had used her trademarked phrase “Own Your Power” “as a mark” on the cover of O, The Oprah Magazine, its website, and at a magazine event.